Deciphering the EU’s new copyright directive

Trinity professor Eoin O’Dell assesses the new law set to radically change the internet in Europe

Crafting good legislation is a challenge for any governmental body. Let alone almost an entire continent. This is made all the more difficult in relation to the social media, digital media platforms and the wider internet overall. The European Commission (EC) in it its current session has been increasingly attempting to regulate the internet in order to address the challenges the perpetually evolving tech industry presents. The latest legislation devised is the Copyright Directive for the digital single market. This aims to reform the European copyright legislation for the digital age. The European Parliament will soon vote on the contentious copyright directive which could radically change internet usage in Europe.

However, since the publication of its first draft earlier this year it has received significant criticism from varied sources. Tech leaders such as the creators of GitHub, WordPress and Wikipedia, Digital rights organisations such as Creative Commons and European academics have voiced their opposition to this legislation online and in the media. Their principle concerns being the effect this legislation would have on the freedom of expression online and the restriction of internet creations which infringe on copyright under this legislation change. Speaking to Associate Professor of Law in Trinity College, Eoin O’Dell who, along with 169 other European academics signed an open letter to the EU, criticising Article 11 and Article 13 of the directive, gave his insight into the issue.

Professor O’Dell begins by explaining that the European copyright law needed amendments as the existing directive dates from 2001 and it was based on the copyright concepts that had been current and common during the previous century. As he states: “What happened with the internet, was that suddenly, the distribution and the means of making from distribution expanded thereby equally expanding the possibility of infringement. So, you were no longer copying a book by photocopying it was happening at the click of a button and it was happening multiple ways.”

O’Dell highlighted that six years ago the EU started to think about this and concluded that the way in, “which the various states were implementing the copyright directive was fragmented and that had a negative effect on consumers.” Then five years ago the process of amending the current copyright law was near completion and a draft of the commission’s position leaked and due to the level of criticism the commission received it didn’t publish a final draft. When Jean Claude Juncker’s commission was established shortly after, the European Union decided to amend the current copyright law with a policy which favoured the digital single market.

Article 11 is the second most contentious article in the proposed directive and has been dubbed as the Google or link tax by Wired, the Guardian and other publications, as companies such as Facebook or Google would be required to pay a licence fee to news publications in order to display snippets of news clips or headlines on their sites . O’Dell revealed that this article is confronting an argument of whether the publishers actually did have a copyright for linked articles, as theexceptions to copyright are straight forward descriptions of news and current affairs, due to the primacy of news and current affairs that everybody should be able to discuss them.

“The content creators have been pushing the legislators everywhere, but particularly in Europe for additional rights and the newspaper industry, in particular, persuaded the Commission that they needed additional protection against news aggregators, that is what Article 11 is doing.”

“It is effectively allowing them to licence to the aggregators, like Google”, O’Dell continues, “As seen in Spain, where the Spanish legislatures attempted to do the same thing, Google just simply stopped producing google news in the dot ES domain. They might be shooting themselves in the foot because in Spain, click through dropped by 40%. Its potentially counterproductive, the whole point of the copyright balance between the rights of copyright holders and the right and it potentially limits the free flow of information.”

Article 13 is the primary focus of criticism for the proposed EU directive and O’Dell explained since the EU copyright legislation in 2001 there has been the growth of the internet and the growth of intermediaries. This has led to further legislative efforts in response.

“With the internet there are easier distribution channels, easier copying channels and these channels are the creations of intermediaries like ISPs (Internet service provider) and social networks to distribute content. The question was whether those intermediaries, because they were providing the means of not only lawful distribution but unlawful copying should be liable for that unlawful copying”, said O’Dell.

“If the ISP’s did not know that material going through their pipes was unlawful material, they (the intermediaries) would not be liable for the damages of that distribution”, O’Dell continues, “The internet companies argument is that the whole structure of the internet as we know it is founded on the fact that the intermediaries like Google are just pipes, and making them liable for what flows through those pipes is going to fundamentally change the internet.” Finishing this explanation O’Dell said: “What Article 13 is trying to do is saying that they need to start monitoring the material going through their pipes and to the extent that they don’t monitor or that the monitoring is ineffective then they are potentially liable in damages.”

Critics like Tim Burners Lee, the creator of the worldwide web and Jimmy Wales, a co-founder of Wikipedia have expressed the same opposition as O’Dell in regards to the potential censorship ramifications the implementation of the article would have on freedom of expression in Europe. O’Dell asserted that there, “is going to be an awful lot of false positives because the penalty for infringement are damages, risk averse companies who don’t want to suffer those damages are simply going to err on the side of caution.”

O’Dell believes companies will filter and monitor excessively and points to Germany as an example, “There is a mini version of this relating to hate speech in Germany and lots of things that aren’t hate speech are being restricted as a consequence.”

When asked if the EU would benefit from adopting a “fair use” clause in the directive, similar to the United States, which protects digital creations such as gifs. O’Dell argues that “fair use” or “flexibility” has been been the big debate all the way along in this long six year creation of this directive.

“Outside of the US we don’t have a general flexible exception and one main of the criticisms of the leaked copyright EU copyright reform directive in 2013 was the absence of a ‘fair use’ flexibility”, said O’Dell, “‘Fair use’ basically says that if the downstream use doesn’t have an effect on the upstream market then the downstream user can use the content.”

O’Dell states that at every stage of the development of the internet, for links and thumbnail image, even Google books, the American courts have found that all of these were “fair use” and argues that: “Leaving out the flexibility of Fair Use is a deliberate choice to favour content and disfavour users.”

Professor O’Dell highlighted that in contrast to the protections given to larger institutions such as the music industry, user created content is not accommodated in the European copyright regime: “As copyright has been maximised to the benefit of creators, it has been minimised to the benefit of other players, users and intermediaries, educational and cultural institutions. The balance has been shifting in a whole lot of ways the copyright term has been extended quite significantly, that is to the benefit of Disney and in fact big content.”

O’Dell continues, “In this directive it’s all on one side, its all to the benefit of content its restricting users and in particular its restricting user generated content and that’s terrible because it absolutely flies in the face of the reality of modern internet culture.”

When asked whether he believed the vote would pass he asserted that he felt it is unlikely, though not impossible to stop it at this point. O’Dell believes it’s kept going in the face of outside opposition is because the EU commission has been co-opted into think about copyright as a business model, “It has been co-opted by content companies because they have got really good lobbying. Civil society doesn’t have the same lobbying effect.”Professor O’Dell suggested that the reason there was so little reaction to this proposed legislation was partly because there is not the realisation that a great deal of internet culture is copyright: “The infringement in relation to say memes is not having any effect on the original market and are often an example of creativity but nevertheless it will be choked. A lot of other things around it will be caught as well. The infringement is trivial and minor until the ISP/ intermediary is responsible. Make the ISP’s responsible and you stop the memes.”

O’Dell was saddened at the potential restrictions but said, “What will happen is that this generation will be the legislators who have lived through unnecessary legislation and seen them being made futile, being made to look silly”, O’Dell continues, “Your generation will see that the current legislation is like King Cnut saying stop to the waves and the waves keep coming and there will be significant changes in thirty years.”

In response to the reporters shock at this number O’Dell gave the reminder that it is nearly twenty years since the last completed revision process started so it could be at least twenty years before the next revision process starts. “Politicians will take the view that they are doing it for a generation”, said O’Dell, “The consequence of this directive positing a problem which isn’t there and creating a solution that won’t work, is that you are going to create a censorship regime, with the over compliance of intermediaries filtering leading to censorship. Article 11 isn’t going to work and will have an effect on political expression.”

O’Dell summarises that it would take time before those who are directly negatively impacted by these changes will, “get into a position to change it.” He believes that this will not happen for another twenty years.